Protection of Beluga Whales

Nature of Case:
In June 2012, Georgia Aquarium, Inc., submitted an application to the National Marine Fisheries Service (NMFS) for a Marine Mammal Protection Act (MMPA) permit to import wild-caught beluga whales, which would be divided up among several aquariums, including the three SeaWorld parks in Florida, Texas, and California, and the John G. Shedd Aquarium in Chicago. In August 2013, NMFS denied this permit application, finding that it did not satisfy the MMPA’s requirements for several reasons. Most importantly, the proposed import could have a significant adverse impact on the Sakhalin-Amur beluga whale stock and potentially encourage the capture of additional beluga whales from this stock for the purpose of public display worldwide. Georgia Aquarium filed suit under the federal Administrative Procedure Act, seeking to overturn this decision. To defend the agency’s denial of the permit application, in January 2014, the Animal Welfare Institute and other animal welfare/conservation organizations sought to intervene in the case. In April 2014, the court granted this motion to intervene. Also in April 2014, AWI and these same organizations filed a petition with NMFS to protect the Sakhalin Bay-Amur River beluga whale stock by designating the stock as “depleted” under the MMPA. On September 28, 2015, the Court found in favor of NMFS and our coalition of Intervenors.

Court:
US District Court for the Northern District of Georgia

Plaintiffs:
Georgia Aquarium, Inc.

Defendants:
Penny S. Pritzker, Secretary, US Department of Commerce; National Oceanic and Atmospheric Administration; National Marine Fisheries Service

Protection of Beluga Whales: Background

The beluga whale (Delphinapterus leucas) is a circumpolar cetacean species found in the cold waters of the northern hemisphere, specifically the coastal waters of Canada, Alaska, Russia, Norway, and Greenland. Unusual among cetaceans, beluga whales have seven unfused cervical vertebrae, a feature which contributes to the marked mobility of their necks. Beluga whales also have a bulbous forehead, due to an organ inside the forehead called the “melon,” which is capable of changing shape, allowing them to make different facial expressions. The melon is used to focus a variety of sounds, which has given the beluga whale the name “canary of the sea.” Beluga whales are extremely social animals, living in close-knit pods of usually fifteen or fewer animals, often segregated by age and sex.

Unfortunately, these unique characteristics of beluga whales have made them a popular choice for public display in aquariums worldwide. As of March 2014, there were 33 beluga whales in captivity in US facilities, 12 of whom were captured in the wild. The US Marine Mammal Protect Act allows the National Marine Fisheries Service (NMFS) to issue permits for the capture and import of wild-caught cetaceans for public display, but only when a permit applicant demonstrates that strict statutory and regulatory criteria are met. NMFS last permitted the capture of wild cetaceans in US waters in 1988 and 1993 under a five-year permit and last permitted the import of wild-caught cetaceans for public display in 1992 (beluga whales captured in Canada). The two decades that have passed since the United States last sourced cetaceans from the wild for public display reflects growing scientific recognition that cetaceans, particularly larger-sized species like belugas, suffer significant trauma when captured and removed from their social group. Additionally, scientific evidence suggests that beluga life spans are shorter in captivity compared to what they are in the wild.

Against this backdrop, in June 2012, Georgia Aquarium, Inc., submitted an application to NMFS for a MMPA permit to import 18 beluga whales captured from the Sea of Okhotsk, which would be divided up among several aquariums, including the three SeaWorld parks in Florida, Texas, and California, and the John G. Shedd Aquarium in Chicago. Georgia Aquarium’s business partner, Utrish Dolphinarium, Ltd.—a Russian company with a long and controversial record in the live captured of cetaceans—arranged for the capture of these beluga whales from the Sakhalin-Amur region of the Sea of Okhotsk in Russia. Other Russian companies are also involved in cetacean captures, including orca (killer whale) captures. In August 2013, after a rigorous review process during which NMFS received nearly 9,000 public comments, NMFS found that Georgia Aquarium’s permit application did not satisfy the MMPA’s statutory and regulatory criteria for several reasons. Most importantly, NMFS found that the proposed import could have a significant adverse impact on the Sakhalin-Amur beluga whale stock and potentially encourage the capture of additional belugas from this stock for the purpose of public display worldwide. NMFS also determined that five of the beluga whales proposed for import were likely nursing at the time they were captured, thus making their import illegal under the MMPA.

On September 30, 2013, Georgia Aquarium filed a lawsuit in the US District Court for the Northern District of Georgia challenging the agency’s decision under the federal Administrative Procedure Act as contrary to the MMPA and its implementing regulations and as arbitrary and capricious. In January 2014, AWI, along with Whale and Dolphin Conservation, Cetacean Society International, and Earth Island Institute, sought to intervene in the case in support of NMFS so as to advance the conservation of beluga whales within the already depleted Sakhalin-Amur stock. On April 18, 2014, the court granted the organizations’ request for permissive intervention, finding that the organizations “were instrumental in informing [NMFS’s] determination to deny the permit.” After summary judgment briefing ended, a merits hearing took place before Judge Amy Totenberg on August 14, 2015.

On September 28, 2015, the court ruled in favor of Defendant NMFS and Intervenors Animal Welfare Institute (AWI), Whale and Dolphin Conservation (WDC), Cetacean Society International (CSI), and Earth Island Institute (EII), finding that NMFS followed the statutory mandate of the MMPA in its previous denial of the aquarium’s permit application.

The court agreed with NMFS’ determination that the Sakhalin-Amur stock is likely declining and is subject to adverse impacts beyond the ongoing Russian live-capture operations. This determination aligns with the primary purpose of the MMPA—to prevent marine mammal species and populations from diminishing beyond the point at which they cease to be a significant functioning element in their ecosystem.

The court also backed NMFS’ interpretation of its regulations, concluding that an import could potentially encourage the capture of additional belugas from this stock for the purpose of public display worldwide.

Finally, the court supported NMFS’ finding that some of the beluga whales proposed for import, estimated to be approximately 1.5 years old at the time of capture, were potentially still nursing and not yet independent of their mothers. The finding, the court ruled, is based on unrebutted scientific literature that beluga whales are not likely fully independent and still rely to some extent on their mother’s milk until 3 years of age.

Independent of this litigation, AWI and the aforementioned conservation organizations sought US protection for the depleted Sakhalin-Amur beluga whale stock. On April 23, 2014, the organizations filed a petition with NMFS to designate the Sakhalin Bay-Amur River stock of beluga whales as “depleted” under the MMPA. Although globally beluga whales are not currently an endangered species, this stock of beluga whales was subject to intense levels of historical hunting from which it has yet to recover, and it faces serious ongoing threats, most notably from annual live captures for public display. Indeed, since 1992, the Sakhalin Bay-Amur River region off the coast of Russia in the Sea of Okhotsk has been the only regular source of wild-caught belugas for public display worldwide. At present, there are an estimated 3,961 belugas in the Sakhalin Bay-Amur River stock—less than 30 percent of the stock’s estimated pre-exploitation population. The MMPA authorizes NMFS to designate as “depleted” marine mammal species or stocks that are below their optimum sustainable population (OSP). Historically, NMFS has considered a species to have fallen below its OSP if it falls below 60 percent of its estimated historic population level.

Over the last few years, NMFS, the US Marine Mammal Commission, and the Scientific Committee of the International Whaling Commission have all concluded that this stock is likely depleted. In addition to conferring certain protections under the MMPA, a depleted designation for the Sakhalin-Amur beluga whale stock would encourage the United States and foreign governments, conservation organizations, the scientific community, and funding institutions to support research and conservation efforts to help recover these belugas and protect their habitat. NMFS is reviewing the petition to make an initial determination as to whether it presents substantial information indicating that a depleted designation may be warranted.

The Atlanta law firm of Stack & Associates represents AWI and the other animal welfare/conservation organizations in this matter.